Shana Regon, NACDL’s Director of White Collar Crime Policy, provided an
update on NACDL’s efforts on Capitol Hill. She began by talking about
NACDL advocacy on attorney-client privilege and attorney work product
protection issues, particularly related to DOJ policy on requesting
waivers of the privilege and protection from cooperating companies.
She also talked about proposed legislation, HR 1947, that would
regulate deferred prosecution agreements (DPAs) and non-prosecution
agreements (NPAs). Among the provisions of HR 1947 are those that
would require court approval of DPAs and NPAs and require posting of
all DPAs and NPAs on the DOJ website. Shana also talked about NACDL’s
efforts to educate Congress about overcriminalization including
ambiguous mens rea standards, mandatory minimums, the federalization of
criminal conduct and the adoption of overlapping statutes covering the
same conduct.

Supreme Court Update

Kathleen Sullivan of Quinn Emanuel spoke about some recent white collar
cases decided by the Supreme Court in the past session: Diaz v.
Massachusetts; Yaeger v. United States; and Nijhawan v. Holder. In
Malendez-Diaz, the Supreme Court held in a 5-4 decision that the
confrontation clause applies to an affidavit from a crime lab analyst
because it is testimonial in nature. Kathleen emphasized that this
decision would apply to any forensic experts. In Yaeger, the court
held that when a jury acquits on some counts and hangs on others, the
government may not re-try the defendant on any of the counts. In
Nijhawan the Court interpreted the deportation statute for aggravated
felonies with respect to crimes of fraud or deceit involving more than
$10,000. The Court held that the $10,000 requirement is met based on
the facts of the case, even if the underlying aggravated felony statute
itself does not require a $10,000 loss

Kathleen noted that in this session, the Court is considering several
honest services cases. Among the issues the Court will tackle is
whether the mail fraud statute criminalizes mere ethical missteps.
Among the honest services cases are United States v. Weyrauch, in which
an Alaska legislator was convicted of soliciting legal work from
clients when he was in a position to benefit clients and not disclosing
the work. The question posed in this case is whether the government
must prove violation of disclosure requirements otherwise required by
state law.

In a case involving Conrad Black, the Supreme Court will evaluate
whether there must be an intent to and likelihood of depriving a
corporation of a business opportunity for an executive to be found
guilty of the honest services provision of the mail fraud statute.
Kathleen said she expects these cases to be decided for the defendants
on narrow statutory grounds.